French Law, American Custom And The 'Perp Walk'
NEAL CONAN, host:
Dominique Strauss-Khan, the director if the International Monetary Fund, appeared in court yesterday after his arrest for an alleged attack on a hotel maid in New York. Photos published in the United States and France show him making the perp walk, and then sitting in handcuffs in the courtroom, just like any other criminal arrested in New York on a drug charge or burglary.
Those images of a respected French economist and presidential hopeful shocked many in France. A law in that country prevents publication of images of suspects in handcuffs until they are found guilty. It also bars cameras inside courtrooms. That's just one of the laws that makes the French legal system very different from ours.
James Whitman wrote several books on this subject, including "Harsh Justice: Criminal Punishment and the Widening Divide between Europe and America." He's a professor of comparative and foreign law at Yale Law School and joins us from our bureau in New York. Nice to have you with us, today.
Prof. JAMES WHITMAN (Yale Law School): It's my pleasure. Thanks for having me.
CONAN: And I guess anybody who's watched the local news in the United States is not surprised to see someone arrested being in handcuffs. It must have come as a surprise in Paris.
Prof. WHITMAN: It seems scandalous to the French, my goodness. Things like that don't go on in France or in Europe, more broadly, in fact.
Prof. WHITMAN: Well, European law, like European culture more generally, is very sensitive when it comes to questions of the protection of personal dignity. And personal dignity is understood, in particular, as control over one's public image. So that events like this are really, thoroughly condemned by - not just by French criminal law, but by French privacy law and not just by French law, but by European law much more broadly.
CONAN: So whatever you think of the allegations against him, the fact that a suspect, not a convicted man but a suspect shown in handcuffs, an outrage.
Prof. WHITMAN: Absolute outrage. It's a terribly undignified way to show somebody.
CONAN: And the French though - I did read on reaction in the paper today -said, well, very interesting, very egalitarian. This is just like anybody else in the United States, and well, we watch "Law & Order" here in France too.
Prof. WHITMAN: Well, you know, they're egalitarian too. They're just - they just treat everybody better. That's the real big difference in France. It's not that equality doesn't matter, you know, they're a republic too. They're a democracy. There's just been a strong tendency to treat everybody in the way the highest status people would expect to be treated.
CONAN: As opposed to our system, which may treat everybody the way lowest status person might be treated.
Prof. WHITMAN: Well, you know, that's a nasty but probably correct view of what goes on in the U.S., you know, at least from the French point of view.
CONAN: And there are also major differences between the - and this goes to a broader point - major differences between the way French handle criminal cases and the way we do.
Prof. WHITMAN: Oh, boy. Are there ever? I mean, there are many, many, of course, there are big procedural differences. This is not the place to describe them now, I guess, but there are many, many protections for dignity. It's not just a matter of keeping cameras out of the courtroom, the dignity of prisoners is protected in prisons even after they've been convicted. There are no barred doors, there are no humiliating uniforms, people are even required to be addressed as monsieur and so and so and madam so and so when they're in prison. There's a great, great commitment to guaranteeing the dignity of everybody.
CONAN: Well, some of those procedural differences are interesting. There is the English system, which we inherited, which is adversarial, and there's the system in France, much more based on the Napoleonic Code.
Prof. WHITMAN: Well, it's even older than that. We call it the inquisitorial system. It's precisely true. It's not adversarial. There's no sense that the government is out there to win a case. In theory, at least, the government is neutral in the business of neutrally pursuing the truth and, in fact, things do look that way. If you ever witness a French trial, you'll see.
CONAN: And so there is no prosecutor, in the same sense that we have one, no grand jury.
Prof. WHITMAN: There's certainly no grand jury. That's vanished elsewhere on the common law world too. That's one of the medieval aspects of the American common law. No, there's nothing like that. There is still, in France, actually, an investigating magistrate rather than a prosecutor.
The idea that a prosecutor should be in charge of the investigation seems very - has seemed, historically, very dangerous. They may give up on the investigating magistrate. But as being said, now, they still have a judge whose job is to do the investigation on the theory again, that the pursuit of the truth is really the goal and not winning a case against an alleged offender.
CONAN: Well, theoretically, the government, the prosecution, is in search of the truth too but, yes, in an adversarial...
Prof. WHITMAN: So, you know, it's not just about the letter of the law, but the culture. But the culture is really very different in the United States.
CONAN: So it's highly competitive and, well, again, it's not something the French don't see in their entertainment. We read in the papers that "CSI" or "Les Experts" is a very popular show in France.
Prof. WHITMAN: You bet, it's had - and the popularity of American shows has had a big impact. In particular, people started saying (speaking in foreign language) all the time in French court, which has, of course, no basis in French law or tradition whatsoever. But they watch so much American TV, don't they?
CONAN: Here's an email we have from Seydou(ph) in Cincinnati: As I was watching the French nightly news, yesterday, I was surprised many France - thought that DSK, as the suspect is known there, was unnecessarily embarrassed by the American authorities. This reinforced my belief that they are less egalitarian in France.
Prof. WHITMAN: Well, you know, I can only repeat what I said before. They're very, very egalitarian, but they've - the system in France is a product of a kind of leveling up. The idea is that norms of respectful treatment that used to be the privilege, strictly, of very high-status people particularly, but not only aristocrats, say, in the 18th century, should now be applied to everybody. That everybody has the right to be treated with respect. In the U.S., we've really seen just exactly the reverse pattern in our law.
CONAN: And when we go on to explore the differences, is there a jury trial after this investigating magistrate determines that the charges are justified?
Prof. WHITMAN: There is indeed, but it's quite different. There are nine jurors. We don't have it. There's none of the wild spectacle of the American juror selection process. There are nine jurors who sit with three judges, and who deliberate along with the judges, rather than deliberating alone. There's also another very, very important difference. American trials are divided into the guilt phase and the sentencing phase, so that the punishment will be decided, only after conviction. Both questions are considered simultaneously in a French court.
CONAN: Does that suggest that there is bargaining involved?
Prof. WHITMAN: In France?
CONAN: Yeah. Well, I know there's bargaining in the United States...
(Soundbite of laughter)
CONAN: ...plea bargaining, but...
Prof. WHITMAN: It is plea bargaining in the United States. You mean when the jury deliberates (unintelligible)?
CONAN: Yeah, as the juries deliberate with the judges.
Prof. WHITMAN: I doubt it. You know, I haven't been in the French jury room, but we generally assume that the judges pretty much call the shots in a jury room.
CONAN: OK. This, an email from Beth in Valley Springs, California: So the French are upset with this French politician being shown on TV. How do they explain why a French socialist politician was staying in a $3,000 a night hotel suite? That could be a far bigger concern of mine since socialism is -socialist is not supposed to be an elitist. Well, that's another issue entirely, than the justice system, but it's a valid question.
Prof. WHITMAN: Well, you know, I have friends from the socialist party. I have to let them speak for themselves, really. Although... Well, you know, I suppose you could tell something like the same story. There is a very strong sense in France, that there's nothing wrong with high living, even for persons who are socialists, or workers, as the case may be.
You know, Mitterrand, the French president, was once asked to describe the goals of French social welfare state. He said, it is the goal of our social welfare state, that every French man should be able to eat in a good restaurant at least once a month.
CONAN: Not the same way that an American politician would have said a car in every garage and a chicken in every pot.
Prof. WHITMAN: Yeah. I thought - yeah, we don't look at things that way.
CONAN: Not quite. Not quite. There are, interestingly, though, questions that are among some journalists in France - and this is about something entirely separate, again, from the legal system - but journalists in France saying, we have had a tradition here of saying people's private lives are strictly out of bounds and maybe we have been - we should've been more diligent in that respect.
Prof. WHITMAN: Well, no, it's quite closely related, in fact. As I said earlier on, the European and particularly French conception of privacy has to do with the control over one's public image. And that means that the strong sense in Europe is that the great threat to privacy comes from the media. In the U.S., we tend to think of a great threat to privacy is coming from the government instead. And the Europeans are often quite tolerant of what, to us seem, you know, horrible government intrusions into privacy, but quite shocked at the liberties our media take.
What this means, as a matter of journalistic practice in France, particularly that the media really has a much more hands-off attitude than anything you'd see in the U.S. And it really is closely related to the perp walk issue. What -although we do care a little bit about dignity in the U.S., of course, we tend to care much more about free expression, about the First Amendment. And that means, in particular, that we're very protective of the interests of the media. It's, in fact, unsurprisingly the New York newspapers, more than any other force, have kept the perp walk alive.
CONAN: Because they like their pictures.
Prof. WHITMAN: Because they like their pictures.
Prof. WHITMAN: Who does? Well, I can't say I do. But I guess they have or probably that likes the pictures.
CONAN: Let's get James on the line. James is calling us from I-70 in Missouri.
JAMES (Caller): Hi there.
Prof. WHITMAN: Hello.
JAMES: Yes. I've been both a public defender, as well as a prosecutor, in American criminal courts on the West Coast.
Prof. WHITMAN: Uh-huh.
JAMES: And one thing that struck me from both perspectives, is the blatant unfairness and prejudice that's caused to somebody accused of a crime when you put them in a perp walk, when you put their picture in paper with handcuffs on. I mean, these people aren't allowed to be in front of a jury with handcuffs on. Why should they allowed to be in front of a perspective jury with handcuffs on?
Prof. WHITMAN: Well, I mean...
JAMES: It just makes no sense to me.
Prof. WHITMAN: Pardon me for interrupting. Well, of course, in theory, we make energetic efforts to guarantee that the jury will not have been exposed to any of that sort of information before its impelled. How much that matters is hard to say...
JAMES: It's a fiction.
Prof. WHITMAN: It's a fiction. But your objection is, of course, the center French objection, too, that it undermines the presumption of innocence to have this, sort of, perp walk. I have to say that it would surprise me a great deal to learn that a perp walk, if one were conducted in France, should affect the outcome of a French trial. I don't think the French judges would be -experience any impact whatsoever.
And it's for that reason, I think - hold on, for other reasons too - that we have to understand that it's much more about the protection of dignity in the French law than it is about the very real dangers you're describing, which are, in fact, greater dangers in the U.S.
JAMES: Yeah. Anyway, interesting show and normally, I do get to listen to you on KQED.
CONAN: Oh, well, James, I hope you're driving carefully.
JAMES: Bluetoothing, thank you.
CONAN: OK. Thanks very much. It's interesting, getting back to your point on the media, for one thing, libel laws are very different in France than in the United States. So you - it's almost impossible to prove libel in the United States.
Prof. WHITMAN: It's very, very difficult. Fundamentally, the core difference, as matter of law, is that, as I mentioned before, personal dignity, or actually in the technical sense, personal honor is a protectable legal interest the common law tradition, generally. That means in practice, that it's much, much, much more difficult to recover in cases like this one, in which it's your reputation or in some sense, your social honor that's been damaged. It's also true, as I mentioned before, that we have the most extraordinarily vigorous, and from the European point of view, excessive First Amendment jurisprudence in the world.
CONAN: And there are - there was a French journalist quoted in the newspaper this morning who said, well, for example, I knew that the defense minister was having an affair with the daughter of the Syrian defense minister and, you know, I never published that because, you know, well, I thought it's his private life. And then I look back on it and said, wait a minute. Maybe I should have reported that.
Prof. WHITMAN: Yeah. Well, I think there's some soul-searching, right now, among French journalists. I'd still be surprised if French culture change radically once the shock has passed.
CONAN: I suspect you're right. French culture is presumably more robust than that. But there is that moment, though, of reality in terms of seeing the New York police system that they watched for entertainment value, as it's portrayed in programs like "Law & Order" on TV, in translation in France, and then seeing its reality.
Prof. WHITMAN: You bet. You know, I've, of course, have lectured on the American system in France, and people are really quite shocked when they - when you get them to understand what the details are really like. They - I suppose the television shows don't quite communicate the radical differences between our approaches and theirs.
CONAN: And there's, an email from John in Rothschild, Wisconsin: And the New York Police Department made DSK sit in the back of a Chevrolet. Now, that is the worst kind of an oppression over a French man.
Prof. WHITMAN: Well, at least we have a sense of humor in the U.S.
(Soundbite of laughter)
CONAN: And he was offended when somebody took a picture of him and his wife in a Porsche, because they thought they were trying to undermine his socialist credentials.
Prof. WHITMAN: You know, I would have thought it didn't help his socialist credentials either, but somehow it didn't seem to matter in France.
CONAN: Well, James Whitman, thank you very much for your time today, and we appreciate it.
Prof. WHITMAN: Thank you.
CONAN: James Whitman, a professor of comparative and foreign law at Yale University, author of the book "The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial." And he joined us today from our bureau in New York.
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